When must a West Virginia judge recuse after a daughter-in-law joins the public defender's abuse-and-neglect team?

Plain-English summary

A judge asked how to handle cases after a future daughter-in-law, who had lived in the judge's home, took a grant-funded parental-resource navigator position at the county public defender's office. Her work and a paired attorney's work were expected to focus on abuse-and-neglect matters.

The Commission applied West Virginia Code of Judicial Conduct Rule 2.11 and discussed State ex rel. Brown v. Dietrick and Tennant v. Marion Health Care Foundation on family relationships, disclosure and disqualification. It concluded the judge is disqualified when the daughter-in-law or the grant-funded attorney is involved, including corresponding criminal matters.

The opinion calls for disclosure of the relationship in all other public defender cases. It says disqualification is likely in other public defender abuse-and-neglect cases handled by another attorney, particularly if the daughter-in-law is involved, while ordinary criminal or habeas cases without additional facts are unlikely to require it; motions to disqualify are to be considered case by case. Abuse-and-neglect cases outside the public defender's office remain available if the daughter-in-law has no involvement.

In practice

The opinion distinguishes direct involvement of the family member or paired attorney from other public defender matters. It requires recusal in the former and disclosure in the latter, with further disqualification depending on the facts.

Common questions

Q: Is the judge disqualified from every public defender case?

A: No. The opinion requires disclosure in all other public defender matters but distinguishes cases involving the daughter-in-law or grant-funded attorney, from which the judge is disqualified.

Q: May the judge hear an abuse-and-neglect case with no defender-office or daughter-in-law involvement?

A: Yes. The Commission says the judge is free to hear such a case on those facts.

Background and rules framework

Rule 2.11(A) addresses reasonable questions about impartiality and specified family connections; Rule 2.11(C) addresses disclosure and possible waiver. The opinion uses Brown and Tennant to frame the distinction between direct family involvement and other cases from the same office.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 2.11(A), (C), judicial disqualification and disclosure.

Cases cited:

• State ex rel. Brown v. Dietrick, 191 W. Va. 169, 444 S.E.2d 47 (1994), spouse in law enforcement and disqualification.
• Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 459 S.E.2d 374 (1995), disclosure and objective recusal.

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2023-18, redacted

Original opinion text

Reproduced from the official redacted PDF for research purposes. The linked PDF is authoritative.

JUDICIAL INVESTIGATION COMMISSION
City Center East - Suite 1200 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(304) 558-0169 • FAX (304) 558-0831

August 30, 2023

Re: JIC Advisory Opinion 2023-18

Dear Judge :

Your request for an advisory opinion to Counsel was recently reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request is as follows:

Your future daughter-in-law will be accepting a position with the County Public Defender’s Office as the Parental Resource Navigator for adult Abuse and Neglect clients beginning October 2, 2023. Your future daughter-in-law has been residing with you for the past year and your son and she will be married on November 4, 2023. It is your understanding that once she starts work, your future-daughter-in-law will only be involved in Abuse and Neglect cases and will only be with an attorney that will also be limited to representation in Abuse and Neglect proceedings under the terms of the grant that is funding both positions. Based upon this information, you want to know how you should handle upcoming cases involving the Public Defender’s Office.

To address your question, the Commission has reviewed Rule 2.11 of the Code of Judicial Conduct which states:

Rule 2.11 Disqualification

(A) A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances: . . .

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(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.

(2) The judge: knows that the judge, the judge’s spouse or domestic partner or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such person is: (a) party to the proceeding, or an officer, director general partner, managing member, or trustee of a party; (b) acing as a lawyer in the proceeding; (c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or (d) likely to be a material witness in the proceeding ....

(C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1), may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding.
The agreement shall be incorporated into the record of the proceeding.

The Code specifically states that the third degree of relationship includes child.

Comment 2 to the Rule notes that “[a] judge's obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed.” Comment 5 states that “[a] judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.”

When a question of disqualification arises, an analysis must be made of when a current or former relationship causes a reasonable questioning of a judge’s impartiality. In State ex rel. Brown v. Dietrick, 191 W. Va. 169, 444 S.E.2d 47 (1994), the Court considered whether the circuit court was correct in holding that a search warrant issued by a magistrate was void because the magistrate was married to the Chief of Police and one of his officers had obtained the warrant. The Court held that in any criminal matter

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where the magistrate’s spouse was involved the magistrate would be disqualified from hearing that matter. The Court declined to extend a per se rule to other members of the police force. The fact that the magistrate’s spouse was the chief of police of a small agency did not automatically disqualify the magistrate who could be otherwise neutral and detached from issuing a warrant sought by another member of the police force.

In Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 459 S.E.2d 374 (1995), the Court held that a judge should disqualify himself or herself from any proceeding in which his impartiality might reasonably be questioned. The Court noted that the avoidance of the appearance of impropriety is as important in developing public confidence in the judicial system as avoiding actual impropriety and that the judge should take appropriate action to withdraw from a case in which the judge deems himself or herself biased or prejudiced. Tennant cited the commentary to former Canon 3E(1) which states that a judge should timely disclose on the record information which he/she believes the parties or their lawyers might consider relevant to the question of disqualification. Litigants and counsel should be able to rely on judges complying with the Code of Judicial Conduct. There is no obligation imposed on counsel to investigate the facts known by the judge which could possibly disqualify the judge. The judge has a duty to disclose any facts even if the judge does not feel that they are grounds for disqualification sua sponte.

Tennant also addressed the rule that a judge has an equally strong duty to sit where there is no valid reason for recusal. In so doing, the Court set forth a balancing test between the two concepts. While giving consideration to the administration of justice and the avoidance of the appearance of unfairness, a judge must also consider whether cases may be unfairly prejudiced or delayed or discontent may be created through unfounded charges of prejudice or unfairness made against the judge. The Court noted that the standard for recusal is an objective one. Facts should be viewed as they appear to the well-informed, thoughtful and objective observer rather than the hypersensitive, cynical and suspicious person.

Based upon the foregoing, the Commission is of the opinion that you are disqualified from presiding over any matters involving your daughter-in-law and the grant-funded attorney assigned to handle Abuse and Neglect cases. You would also be disqualified from handling any corresponding criminal cases. You should disclose the nature of the relationship in all other matters handled by the public defender’s office. It is likely that you would be disqualified from any Abuse and Neglect cases handled by someone other than the grant funded attorney particularly if your daughter is involved in the case. As to any other criminal law or habeas matters, it is unlikely that you would be disqualified absent any additional facts but you should consider any Motion to Disqualify on a case by case basis and rule accordingly. Of course, you would be free to handle any Abuse and Neglect cases that do not involve the

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public defender’s office as long as your future daughter-in-law has no involvement in the matter.

The Commission hopes that this opinion fully addresses the issues which you have raised. Please do not hesitate to contact the Commission should you have any questions, comments or concerns.

Sincerely,

Alan D. Moats, Chairperson
Judicial Investigation Commission

ADM/tat